Catanzano v Studio London Ltd & Ors

Where an employer and individual employees are concurrent wrongdoers in a discrimination claim, they are jointly and severally liable to the claimant for an indivisible loss. A tribunal cannot apportion liability to the claimant according to each respondent’s relative responsibility. Contribution is instead a matter between respondents.

Liability may be apportioned where distinct discriminatory acts at different times cause divisible losses. Thus an employee who played no part in a grievance process need not be liable for an uplift caused solely by the employer’s unreasonable non-compliance with the ACAS Code. A tribunal must also award discrimination losses under that head where doing otherwise would remove the claimant’s joint and several remedy, while preventing double recovery.

The claimant succeeded before an Employment Tribunal in claims including sex discrimination, unfair dismissal and unlawful deductions from wages. The Tribunal held the employer and two managers responsible for preventing her return to work, awarded £3,000 for injury to feelings, and apportioned that award between them. It awarded a 25% uplift against the employer alone because the managers had not influenced the defective grievance process.

The Tribunal also awarded the claimant’s earnings for an 11-week discriminatory exclusion from work as unlawful deductions from wages against the employer only. It made no corresponding sex-discrimination award, to avoid duplication.

The claimant appealed the remedy decision. The central issues were whether the injury-to-feelings award and earnings loss should be joint and several, and whether the managers were also liable for the uplift.

1. The appeal was allowed in part. The Tribunal erred in apportioning the £3,000 injury-to-feelings award. Applying London Borough of Hackney v Sivanandan and Bungay and Anor v Saini and Ors, concurrent wrongdoers who cause the same indivisible discrimination loss are each jointly and severally liable to the claimant for the whole loss.

2. Relative culpability does not permit an allocation of that liability as between claimant and respondents. Any adjustment for respective responsibility is a contribution matter between respondents under the Civil Liability (Contribution) Act 1978. The employer’s vicarious liability for the managers’ discriminatory acts did not create distinct losses. Each respondent was therefore liable for the whole £3,000.

3. The Tribunal was nevertheless correct to confine the 25% uplift to the employer. The uplift formed part of the discrimination award, but it arose from the later handling of the grievance. On the Tribunal’s findings, neither manager had influenced that process. That was a divisible component of loss for which they bore no responsibility. The second ground of appeal was dismissed.

4. The Tribunal also erred by awarding the 11-week earnings loss only as unlawful deductions from wages. An overlapping award under another head may ordinarily be unnecessary where the amount, period, liable respondents and nature of liability are identical. Here they were not identical: a sex-discrimination award would have imposed joint and several liability on all three respondents. The Tribunal should have awarded the earnings loss under the discrimination claim, with provision to prevent double recovery.

• Employment Appeal Tribunal: Appeal allowed in part. The remedy order was corrected so that the injury-to-feelings award and relevant earnings loss were joint and several against all three respondents, but the employer-only uplift was upheld.
• Employment Tribunal: Employment Judge Glennie’s judgment, sent on 3 June 2011 with reasons sent on 8 July 2011, upheld claims including sex discrimination and made the remedy awards appealed from.